* Forthcoming Scholarship
“Rendition Operations: Does U.S. Law Impose Any Restrictions? “
Daniel L. Pines
Central Intelligence Agency
Loyola University Chicago Law Journal, Forthcoming
For centuries, the United States has seized individuals oversees and, outside any formal extradition process, brought such individuals to the United States to stand trial. A more recent wrinkle has been the transfer of such individuals to other countries for the purposes of prosecution or interrogation. Known as “rendition operations,” such transfers have often been criticized. Numerous commentators, asserting that many of these activities violate U.S. law, have called on the U.S. government to cease such operations and prosecute U.S. officials who engage in them. Nonetheless, a Special Task Force established by President Obama recently advocated the continued used of rendition operations, though with some policy changes. In order to effectuate such changes, and understand their impact, the Administration, as well as the critics and proponents of rendition operations, need to understand current U.S. law regarding renditions. Yet, despite all the focus, concern and criticism over rendition operations, no scholarly work to date has evaluated the entirety of U.S. law regarding such activities. This article proposes to do just that. It concludes that, upon close inspection of U.S. law, there are virtually no legal restrictions on these types of operations. Indeed, U.S. law does not even preclude the United States from rendering individuals to a third country in instances where the third country may subject the rendered individual to torture. The only restrictions that do exist under U.S. law preclude U.S. officials from themselves torturing or inflicting cruel and unusual punishment on individuals during rendition operations, or rendering individuals from a place of actual armed conflict or occupation – all of which prove to be narrow limitations indeed. Finally, few actual means exist to prosecute or sue U.S. officials engaged in rendition operations, due to limitations in civil and criminal statutory authority, as well as the courts’ continuous reluctance to consider such claims.
“Confrontation and Hearsay Issues in Federal Court Terrorism Prosecutions of Gitmo Detainees – Moussaoui and Paracha as Harbingers”
UCLA Law School
Brooklyn Law Review, Vol. 75, p. 1067, 2010
UCLA School of Law Research Paper No. 10-28
This paper was written for a feschrift in tribute to Professor Margaret Berger. It uses the 4th Circuit’s final direct appeal opinion in United States v. Moussaoui as a springboard for an examination of how certain types of confrontation and hearsay issues might be argued and decided in future terrorism prosecutions in the federal courts.
In addressing a compulsory process issue, the Moussaoui court developed arguments about the reliability of intelligence reports prepared by the government derived from the interrogation of three detainees. Moussaoui was seeking the testimony of these detainees: The Moussaoui court concluded that the statements recorded in the reports were obtained for terrorism intelligence purposes and that, in the circumstances, the statements included therein had sufficient reliability to permit their use as a substitute for in-person or deposition testimony, which the government on national security grounds had declined to make available.
The nature of the characterization of these reports by the Moussaoui court, albeit in a compulsory process context, lends itself to thinking about what would happen if similar intelligence reports are offered into evidence in future federal court terrorism prosecutions, but in a confrontation/hearsay context. This paper analyzes the issues that would be raised under the doctrines of Crawford v. Washington and Davis v. Washington as well as the Federal Rules of Evidence and assesses the likely success of such a use of the Moussaoui approach.
“Low-Intensity Computer Network Attack and Self-Defense”
Creighton University Law School
Newly created State cyber security agencies, the reality of cyber attacks, and evolutions in cyber attack strategy will have important effects on the UN Charter’s security regime, specifically the law governing States’ resort to self-defense. In particular, low-intensity computer network attacks (CNA) confound efforts at correlation, frustrate attribution, and often manage to remain below States’ response thresholds, both technical and legal. This paper identifies effects that an emerging emphasis on low-intensity CNA will have on legal conceptions of self-defense, focusing on the doctrine’s relevance to attacks by non-state actors and the threshold of "armed attack." Showcasing the 2007 Estonian and 2008 Georgian attacks, this paper suggests that emerging low-intensity CNA doctrine casts new light on cyber disruptions previously thought to be below the threshold of self-defense. More significantly, it forecasts that proliferation of low-intensity CNA will produce a complex, multipolar security environment likely to produce grim effects on what little coherence and efficacy the existing UN Charter-based doctrine of self-defense enjoys.
"'[We] Can Neither Confirm Nor Deny the Existence or Nonexistence of Records Responsive to Your Request’: Reforming the Glomar Response Under FOIA"
New York University Law Review, Vol. 85, No. 4, p. 101, 2010
NATHAN FREED WESSLER, affiliation not provided to SSRN
Under normal Freedom of Information Act procedures, an individual submits a request for records to a government agency and receives one of three responses: The agency may identify responsive records and release them, determine that there are no responsive records and inform the requestor of this fact, or identify responsive records but determine that they are exempt from disclosure under one of FOIA’s nine statutory exemptions. Since the 1970s, however, a fourth type of response has arisen: Agencies sometimes refuse to confirm or deny whether responsive records do or do not exist on the grounds that acknowledging their very existence itself would reveal secret information. This withholding mechanism, known as the Glomar response, creates special problems for FOIA requestors and receives remarkable deference from federal courts. This Note assesses the justifications for such deference, which are often rooted in separation of powers concerns. Arguing that the level of deference afforded is excessive, this Note posits that both separation of powers and institutional conflict of interest considerations support greater judicial scrutiny of agency invocations of the Glomar response. This Note concludes by offering proposals for judicial, legislative, and administrative reform of the Glomar response.
"Limited War and the Constitution: Iraq and the Crisis of Presidential Legality"
Michigan Law Review, Forthcoming
Yale Law School, Public Law Working Paper No. 216
BRUCE ACKERMAN, Yale University – Law School
OONA A. HATHAWAY, Yale University – Law School
We live in an age of limited war. Yet the legal structure for authorizing and overseeing war has failed to address this modern reality. Nowhere is this failure more clear than in the recent U.S. conflict in Iraq. Congress self-consciously restricted the war’s aims to narrow purposes – expressly authorizing a limited war. But the Bush Administration evaded these constitutional limits and transformed what was a well-defined and limited war into an open-ended conflict operating beyond constitutional boundaries. President Obama has thus far failed to repudiate these acts of presidential unilateralism. He has instead followed the course set by the Bush Administration and thereby begun to consolidate his predecessor’s exercises in institutional aggrandizement.
The presidency is not solely responsible for this unconstitutional escalation. Congress failed to check this abuse because it has failed to adapt its central power over the use of military force – the power of the purse – to the distinctive problem of limited war. Our proposal restores Congress to its rightful role in our system of checks-and-balances. We suggest that the House and Senate should adopt new Rules for Limited War that would create a presumption that any authorization of military force will expire after two years, unless a different time-frame is expressly contained in the resolution. This time-limit would be enforced by a prohibition on future war appropriations after the deadline, except for money necessary to wind down the mission. These new rules would not only prevent presidents from transforming limited wars into open-ended conflicts. They would also create incentives for more robust democratic debate over the decision to commit to military engagements from the very start. Under the Constitution, either House or Senate may adopt these rules unilaterally, and thereby avoid the threat of presidential veto. Our proposal thus provides a practical way in which Congress may effectively reassert its constitutional power – and with it more effective democratic control – over the use of military force.